Why Presidential Pardons Are Normal, Trump’s Less So

(Bloomberg) -- The U.S. president has vast constitutional power to grant clemency in the form of pardons and commutations. The process is often tinged with politics. George H.W. Bush pardoned six men involved in the Iran-Contra scandal, while Bill Clinton pardoned Marc Rich, a Democratic Party donor who had fled to Switzerland after being accused of tax crimes. But clemency under Donald Trump has been unusual in multiple respects, including how recipients are evaluated and how announcements are timed. There even was speculation that Trump, in his final wave of pardons before leaving office on Wednesday, might try to preemptively pardon himself as a shield against any future prosecution for alleged federal crimes.

1. What is a pardon?

It’s an act of presidential forgiveness rooted in Article II, Section 2 of the U.S. Constitution that wipes the slate clean for the recipient, even halting judicial proceedings that are under way. (A commutation differs from a pardon by making a punishment milder without wiping out the underlying conviction.) Alexander Hamilton, explaining the purpose of presidential pardoning power in Federalist Paper No. 74, said that the severity of a criminal code demands “an easy access to exceptions in favor of unfortunate guilt,” without which “justice would wear a countenance too sanguinary and cruel.”

2. Who has been pardoned by Trump?

Before Trump’s expected final wave of clemency, he had issued 70 pardons and 25 commutations, many of them to politically connected convicts in response to outcry from fellow Republicans or appeals from celebrities. Recipients include Michael Flynn, his first national security adviser, who had pleaded guilty to lying to FBI agents; political ally Roger Stone, who was supposed to serve more than three years in prison for witness tampering and lying to Congress; Paul Manafort, his 2016 campaign chairman, who had been convicted of financial crimes and illegal lobbying; two former Republican congressmen convicted of a range of financial crimes; Charles Kushner, the father of Trump’s son-in-law, Jared; four former employees of private security contractor Blackwater who were convicted in relation to the 2007 killing of Iraqi civilians; author Dinesh D’Sousa, who pleaded guilty in 2014 to using straw donors to evade campaign finance limits; former Illinois Governor Rod Blagojevich, a Democrat who was convicted of public corruption; financier Michael Milken, who was convicted of securities fraud; and former New York City Police Commissioner Bernard Kerik, who was sentenced to four years in prison for failure to pay taxes and lying to White House officials.

3. How is Trump doing things differently?

He’s turned clemency into something of a theatrical process, announcing a posthumous pardon of Susan B. Anthony to mark the centennial of women’s suffrage and timing another pardon to be part of the 2020 Republican National Convention. While standard procedure is to let the Justice Department’s Office of the Pardon Attorney vet requests, most of Trump’s grants of clemency have gone to people who didn’t meet the office’s requirements or hadn’t even asked for one. Of Trump’s first 94 pardons and commutations, only seven appeared to have come on recommendation of the pardon attorney, and at least 84 were granted to people with “a personal or political connection to the president,” according to a review led by Harvard Law School Professor Jack Goldsmith. Trump’s first pardon, for instance, was given to Joe Arpaio, the former Maricopa County, Arizona, sheriff who had been found guilty a year prior of criminal contempt of court. Arpaio hadn’t applied for the pardon.

4. Is Trump allowed to do that?

Yes. The president can grant a pardon “to any individual he deems fit, irrespective of whether an application has been filed with the Office of the Pardon Attorney” and at any time after the commission of an offense, the Congressional Research Service has written.

5. Who else is seeking pardons?

A lot of people, most of them not famous at all. There were 2,445 pending requests for pardons and 11,510 pending requests for commutations at the start of this fiscal year, according to the Justice Department.

6. Could Trump pardon himself?

White House officials don’t expect Trump to pardon himself, family members or close aides. On Nov. 30, one of the president’s favorite TV personalities, Sean Hannity of Fox News, said Trump should “pardon his whole family and himself” on his way out the door. In a 2018 tweet, Trump claimed an “absolute right” to pardon himself, but that’s far from clear. Experts weighing the question point to legal advice given to President Richard Nixon in 1974 in connection with the Watergate scandal: “Under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself.” That advice hasn’t ever been tested in court. Even if Trump did so, and the pardon withstood legal challenges, it wouldn’t preempt state or local authorities from charging him.

The Reference Shelf

• Bloomberg Businessweek looked at the jockeying for pardons in the final weeks of the Trump presidency.
• The New York Times reported that some Trump allies collected fees from wealthy felons seeking clemency.
• Stories on the pardons and commutations of Milken, Blagojevich, Arpaio and (posthumously) boxer Jack Johnson.
• The Justice Department’s running lists of Trump pardons and commutations.
• The Brennan Center for Justice on campaign finance and “the problematic Trump pardons.”

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